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LABOR & EMPLOYMENT LAW — 09/29/09

EEOC continues to file more disability discrimination lawsuits

The US Equal Employment Opportunity Commission (EEOC) has filed five more disability discrimination lawsuits against employers as the end of the commission’s fiscal year approaches. The number of lawsuits filed by the EEOC typically increases during the last few weeks of its fiscal year (FY), which ends September 30, 2009. Many of these recently filed suits have alleged disability discrimination.

On September 23, 2009, the federal agency published its proposed rule implementing the ADA Amendments Act (ADAAA), which makes it easier for an individual alleging employment discrimination based on disability to meet the ADA’s definition of “disability” (74 FR 48431). The following five disability discrimination lawsuits have been brought against employers by the EEOC.

St. John Health System, Inc. On September 25, 2009, the EEOC filed suit against St. John Health System, Inc, a Tulsa, Oklahoma hospital, alleging that the employer violated the ADA by removing an employee from her position as a scrub technician and then firing her because of her hearing impairment (EEOC v St. John Health Sys & Physician Support Servs, Inc, NDOkla, No 4:09-cv-00624-GKF-TLW).

In March 2006, St. John Health System removed Laquita Reherman from her position as an operating room scrub technician due to complaints from physicians about her hearing impairment, and refused to assist her in finding another permanent position within the hospital system, according to the EEOC. There were a number of positions available that Reherman could have performed in spite of her hearing impairment, the EEOC alleges. St. John placed Reherman in a temporary position as a float scrub technician until mid-June 2006, when St. John informed her that the float position had been eliminated. Reherman’s employment was terminated on June 29, 2006.

“The law requires an employer to make reasonable attempts to accommodate its employees’ disabilities, but St. John failed to make a sufficient effort to resolve this matter fairly and legally,” said Barbara A. Seely, regional attorney for the EEOC’s St. Louis District Office.

Jim Walter Resources. The world’s largest producer of Blue Creek, Alabama coal, Jim Walter Resources, violated the ADA by refusing to grant a reasonable accommodation to a deaf miner and subjecting him to a hostile work environment because of his disability, according to a lawsuit filed by the EEOC on September 25, 2009 (NDAla, No 7:09-cv-1895). Raymond Roe, a long-time employee of Jim Walter Resources who is hearing-impaired, had worked as a mineworker at Jim Walter Resources’ Mine #5 from 1985 until that mine was closed, the federal agency alleges. During that time the company made certain that he was assigned to perform his duties under conditions which did not interfere with or damage his hearing aids, such as excessive moisture or exposure to electromagnetic or other interference, the EEOC said.

When Mine #5 was closed, Roe transferred to Mine #7, where he requested the same accommodation. But the company refused to grant him the accommodation and since at least April 2007, Roe has been frequently forced to work in portions of the mine which contain high levels of moisture or involve exposure to electromagnetic or other interference, thereby damaging his hearing aids and exposing Roe to increased risk of injury or harm, the EEOC asserted.

Jim Walters not only failed to provide a reasonable accommodation to Roe but also discriminated against him in the terms and conditions of his employment and subjected him to a disability-based hostile work environment by placing him in situations where his hearing aids might fail, according to the federal agency. The lawsuit seeks monetary relief for Roe, a court order requiring the company to implement new policies and practices designed to prevent discrimination and harassment, employee training on anti-discrimination laws, posting of notices at the work site and other injunctive relief.

“Employees with disabilities are entitled to reasonable accommodations to facilitate workplace success,” said Delner Franklin-Thomas, director for the EEOC’s Birmingham district office. “Unfortunately, in this case, a valued, long-term employee was not permitted to continue receiving the accommodation he was given previously. This refusal of an accommodation placed Roe in an environment where his hearing aids might fail, which has significant safety implications in a mine.”

Garden Ridge Corporation. In an unrelated case on behalf of hearing-impaired individuals, the EEOC filed a lawsuit against Houston-based home décor retail company Garden Ridge Corporation for violating the ADA by discriminating against hearing-impaired applicants at its Austin store. The suit, filed on September 25, 2009, alleges that Garden Ridge failed to hire two applicants for stocker positions based upon their deafness (WDTex, No A09CA707SS).

One of the applicants had previous employment experience as a stocker with Garden Ridge, and held a current job as a stocker at a competitor, Hobby Lobby, the EEOC alleged. The other applicant had previously held a position in floor sales and had the necessary experience to perform the stocker job, the federal agency says. The hiring official responsible for screening the applicants nevertheless flatly told one of the applicants that she was excluded because of her impairment, the EEOC asserts.

The EEOC is seeking back pay, compensatory damages and punitive damages for the victim, as well as injunctive relief.

“Simply eliminating deaf job applicants from consideration, without even attempting an accommodation, is unfair and unlawful,” said EEOC Acting Chairman Stuart J. Ishimaru.

“An employer must make reasonable accommodation to the known physical limitations of a qualified applicant with a disability unless it can show that the accommodation would cause an undue hardship,” added Judith G. Taylor, supervisory trial attorney of the EEOC’s San Antonio field office.

Balance Staffing. On September 25, 2009, the EEOC filed a lawsuit claiming that Balance Staffing, a nationwide staffing company, unlawfully discriminated against a blind woman in Chicago because of her disability. Balance Staffing made a job offer to the woman to work at its planned Chicago office with an official start date, and she began performing services for them from home, according to the lawsuit (NDIll, No 09 CV-06004).

The company later discovered that the woman is blind and rescinded the job offer, the EEOC alleges. Balance Staffing had in fact already hired her, accepted her work, and refused to pay her any wages for the weeks of service that she had already provided, the federal agency contends. Balance Staffing has since ceased its operations in Chicago.

Southwestern Bell Telephone. AT & T Services, Inc, doing business as Southwestern Bell Telephone Company, LP (AT & T), violated the ADA by refusing to hire an applicant for the job of cable splicer technician in Austin only because of his “insulin use” for type 2 diabetes, the EEOC asserts in a lawsuit filed on September 25, 2009 (WDTex, No A09CA700JN). The applicant indisputably had the necessary experience and expertise to perform the job and had previously safely performed a similar job for AT & T for many years after he was diagnosed with diabetes, according to the federal agency.

The EEOC seeks back pay, compensatory damages and punitive damages for the applicant, as well as injunctive relief.

“This company flatly refused to consider an applicant for employment simply because he is an insulin-dependent diabetic,” said Supervisory Trial Attorney Judith G. Taylor of the EEOC’s San Antonio field office. “AT & T should not have relied on generalized and grossly incorrect assumptions about a diabetic’s ability to perform a job, especially considering that the applicant worked for about 13 to 14 years in a similar job for AT & T, approximately ten years of which he was an insulin-dependent diabetic.”

In FY 2008, disability-based EEOC charges rose to a record 19,543, up 10.2 percent from the prior year and the highest level since 1995.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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